Will: Obama’s worse than Nixon on the Constitution

Ed MorrisseyPosted at 12:41 pm on August 15, 2013

Richard Nixon once argued to David Frost in a now-famous post-resignation interview that anything a President does is by definition legal:

George Will writes today that the spirit of Nixon has returned with a vengeance in President Barack Obama, who has suddenly discovered that statutes are inferior to presidential whim. Rather than wait for Congress to address the need for delays in ObamaCare mandates, or even work with efforts to provide them, the President stiffed Congress by declaring the legislative branch unnecessary for the statutory process:

Obama’s explanation began with an irrelevancy. He consulted with businesses before disregarding his constitutional duty to “take care that the laws be faithfully executed.” That duty does not lapse when a president decides Washington’s “political environment” is not “normal.” …

Twenty-three days before his news conference, the House voted 264 to 161, with 35 Democrats in the majority, for the rule of law — for, that is, the Authority for Mandate Delay Act. It would have done lawfully what Obama did by ukase. He threatened to vetothis use of legislation to alter a law. The White House called it “unnecessary,” presumably because he has an uncircumscribed “executive authority” to alter laws.

At least Nixon took care to limit his claim to national security, or nearly so, Will writes. Obama seems to have adopted in on the grandest possible scale, especially for protecting his political interests:

Nixon’s claim, although constitutionally grotesque, was less so than the claim implicit in Obama’s actions regarding the ACA. Nixon’s claim was confined to matters of national security or (he said to Frost) “a threat to internal peace and order of significant magnitude.” Obama’s audacity is more spacious; it encompasses a right to disregard any portion of any law pertaining to any subject at any time when the political “environment” is difficult.

Obama should be embarrassed that, by ignoring the legal requirement concerning the employer mandate, he has validated critics who say the ACA cannot be implemented as written. What does not embarrass him is his complicity in effectively rewriting the ACA for the financial advantage of self-dealing members of Congress and their staffs.

Will refers to the ObamaCare waiver for Capitol Hill, which gives Congress an out from the explicit language of the ACA statute that forces it to be treated the same as any other employer. Even Congress had more shame than to write a waiver for that requirement. Instead, Obama unilaterally ordered that Congress receive subsidies to counter the effect of ObamaCare on staffing, while everyone else has to deal with that same problem without an Oval Office bailout.

“It is no overstatement to say that our constitutional system of separation of powers would be significantly altered, if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this case…. Under Article II of the Constitution and relevant Supreme Court precedents, the President must follow statutory mandates so long as there is appropriated money available and the President has no constitutional objection to the statute.” That is the basis for the rule of law as well as the separation of powers under the Constitution – that the law applies to everyone equally, from the President to each citizen, including executive-branch agencies like the NRC and the Department of Energy.” …

This ruling demolishes the strategy for the White House to delay the political impact of employer mandates and out-of-pocket caps on insurers until after the 2014 midterm elections. Those mandates were written into statute by Congress and signed by President Obama himself. Thanks to the manner in which the White House won its Supreme Court battle over Obamacare, these mandates are not prosecutions but taxes, enforced by the IRS. The law requires employers to report on health-insurance status each month, and it requires insurers to cover out-of-pocket expenses after a certain level.

The Obama administration cannot simply declare those mandates suspended on their own, as they have attempted to do over the past few weeks, no more than they can stall on Yucca Mountain indefinitely. The Department of Health and Human Services can only ignore these statutes, according to Aiken County, if the President finds them to be unconstitutional. That would be a neat trick, considering that the Obama administration fought for years to establish the constitutionality of the mandates. Otherwise, as the appeals court states, the executive branch has to work with the legislative branch to amend statutes with which they prefer not to comply, or follow the law.

Why is the Obama administration adopting neo-Nixonianism to avoid the consequences of its own law? Michael Ramirez offers an explanation at Investors Business Daily, inspired by recent events designed to squelch satirical dissent:

Also, be sure to check out Ramirez’ terrific collection of his works: Everyone Has the Right to My Opinion, which covers the entire breadth of Ramirez’ career, and it gives fascinating look at political history. Read my review here, and watch my interviews with Ramirez here and here. And don’t forget to check out the entire Investors.com site, which has now incorporated all of the former IBD Editorials, while individual investors still exist.